2019 QCCQ 2860, 2019 QCCQ 2860

Andary c. Bourion 2019 QCCQ 2860 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-700380-167 DATE: May 13, 2019 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ Serge Andary And Sandra DiPalma Plaintiffs v.

Marie Bourion Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs Serge Andary and Sandra DiPalma claim $4,032.16 in damages from Marie Bourion for breach of a promise to purchase an immovable. They claim that after entering into a promise to purchase Mrs. Bourion’s property, they discovered a defect or irregularity affecting the property, namely a non-compliance with a zoning by-law, which Mrs. Bourion failed to remedy and which lead them to cancel the agreement.

They seek the reimbursement of expenses they incurred, including building inspection and notarial fees. [ 2 ] Mrs. Bourion contested the claim in damages and notably argues that the amounts claimed are not reasonable incurred expenses. However, although she was duly summoned and sent the notice of trial, she did not appear at the trial. Therefore, the Plaintiffs were authorized to proceed against her by default. Issues [ 3 ] Plaintiffs’ claim raises the following issues:

a) Were Plaintiffs entitled to consider the Promise to Purchase null and void?

b) Are the expenses incurred by Plaintiffs prior to the cancellation of the Promise to Purchase reasonably incurred? Context [ 4 ] Mrs. Bourion owns a residential property in the Town of Mount Royal which she put up for sale (“ Property ”). [ 5 ] On August 21, 2016, Plaintiffs sign a promise to purchase the Property (“Promise to Purchase”). [1] [ 6 ] On August 22, 2016, Mrs. Bourion accepts Plaintiffs’ Promise to Purchase. [ 7 ] In late August 2106, Plaintiffs receive the building inspection report from their pre-purchase building inspector. [2] [ 8 ] On or about October 13, 2016, Mrs.

Bourion (the seller) remits to the Plaintiffs the certificate of location of the Property (“Certificate of Location”). [3] [ 9 ] Upon reading the Certificate of Location, the Plaintiffs discover that the location of the building on the Property does not comply with the municipal zoning by-laws. [4] [ 10 ] Accordingly, on October 17, 2016, Plaintiffs send Mrs. Bourion (the seller) a notice in which they raise the noncompliance with the municipal zoning bylaw and notify the seller that she has 21 days following receipt of the Notice to remedy at her expense this defect or irregularity (“ Notice of Defect ”). [5]

[ 11 ] On October 24, 2016, the seller informs the Plaintiffs that she will not remedy this defect or irregularity. [6] [ 12 ] On October 28, 2016, the Plaintiffs send the seller a notice whereby they inform her that they consider the Promise to Purchase null and void given that she has refused to remedy the defect. [7] [ 13 ] By demand letter dated November 17, 2016, the Plaintiffs reiterate to the seller that they consider the Promise to Purchase null and void and claim from her the reimbursement of expenses in the amount of $4,432.16 pursuant to clause 10.5 (

b) of the Promise to Purchase. [8] Analysis and Decision

a) Were Plaintiffs entitled to consider the Promise to Purchase null and void? [ 14 ] Clause 10.5 of the Promise to Purchase states: DEFECT OR IRREGULARITY - Should the BUYER or the SELLER be notified, before the signing of the deed of sale, of any defect or irregularity whatsoever affecting the declarations and obligations of the SELLER contained herein, the SELLER shall, within twenty- one (21) days following receipt of a written notice to that effect, notify the BUYER, in writing, that he has remedied the defect or irregularity at his expense or that he will not remedy to it.

The BUYER may, within a period of five days following the receipt of a notice from the SELLER that the latter will not remedy the defect or irregularity, or following the expiry of the twenty-one (21) day period in the absence of any notice, notify the SELLER, in writing:

a) that he is purchasing with the alleged defects or irregularity mentioned. Consequently the SELLER’s declarations and obligations shall be reduced accordingly; OR

b) that he renders this promise to purchase null and void. Consequently, the fees, expenses and costs reasonably incurred until that time by the BUYER and the SELLER shall be borne only by the SELLER . Where the BUYER has not availed himself of the provisions of paragraphs (

a) or (

b) above within the specified time period, this promise to purchase shall become null and void, in which case the BUYER and the SELLER shall each bear the fees, expenses and costs incurred by them respectively. [Underlining added] [ 15 ] Under clause 10.3 of the Promise to Purchase, Mrs. Bourion guarantees to Plaintiffs against any violation of the restrictions of public law that affect the Property and that are exceptions to the ordinary law of ownership. Moreover, according to

article 1723 of the Civil Code of Québec (“ C.C.Q. ”) “[t]he seller warrants the buyer against any encroachment on his part unless he has declared it at the time of the sale.” [ 16 ] The Certificate of Location that Mrs. Bourion remitted to the Plaintiffs in compliance with the clause 10.3 of the Promise to Purchase reveals that the location of the building on the Property violates the zoning bylaws. [ 17 ] This noncompliance with the zoning bylaw constitutes a defect or irregularity affecting Mrs. Bourion’s declarations and obligations as seller under clause 10.3 of the Promise to Purchase as well as a breach of

article 1723 C.C.Q. [ 18 ] Given this defect, the Plaintiffs were entitled to send Mrs. Bourion a notice of defect and enjoin her to remedy it. [ 19 ] While Plaintiffs did send her the Notice of Defect, Mrs. Bourion elected not to remedy the defect. [ 20 ] Considering that Mrs. Bourion did not remedy the defect, the Court concludes that that under the terms of clause 10.5 of the Promise to Purchase, the Plaintiffs were indeed entitled to consider the Promise to Purchase null and void.

b) Are the expenses incurred by Plaintiffs prior to the cancellation of the Promise to Purchase reasonably incurred? [ 21 ] Clause 10.5 of the Promise to Purchase stipulates that when the agreement becomes null and void, the fees, expenses and costs reasonably incurred until that time by the buyer, i.e, the Plaintiffs, shall be borne only by the seller, i.e, Mrs. Bourion. [ 22 ] Plaintiffs claim from Mrs. Bourion the fees, expenses and costs they incurred until October 28, 2016, date on which the Promise to Purchase became null and void. [ 23 ] The fees, expenses and costs which Plaintiffs claim from Mrs.

Bourion total $4,032.16 and include: • Building inspection report - $2,200.50; [9] • Air quality inspection fees - $1,402.70; [10] • Notarial fees - $229.96; [11] • French drain (deposit) - $100.00. [12] • TOTAL: $4,032.16

[ 24 ] The expense incurred by the Plaintiffs for the pre-purchase building inspection report is a reasonable expense as the Promise to Purchase was conditional upon the buyers being permitted to inspect the Property by a building inspector (clause 8). [ 25 ] The Inspect-Pro Building inspection report revealed issues with air quality and the French drain. [13] As prudent and diligent buyers, the Plaintiffs retained experts in the field of air quality analysis and French drains and incurred expenses. [ 26 ] Finally, the fees paid to the notary for a title search are also reasonable in the context of the Promise to Purchase. [ 27 ] To conclude, the damages claimed by Plaintiffs are fees, expenses and costs reasonably incurred up to the date on which the Promise to Purchase became null and void.

Under clause 10.5, Mrs. Bourion, as seller, is responsible for the payment of these expenses. Accordingly, the amount the Plaintiffs claim will be awarded to them. FOR THESE REASONS, THE COURT: [ 28 ] GRANTS Plaintiffs’ Application against Marie Bourion; [ 29 ] CONDEMNS Marie Bourion to pay to plaintiffs $4,032.16 with interest at the legal rate plus the additional indemnity provided for by

article 1690 of the Civil Code of Québec calculated as of December 22, 2016; [ 30 ] WITH COSTS of $100 payable by Marie Bourion to Plaintiffs. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: January 8, 2019; Certificate of Location received from Plaintiffs on January 14, 2019, date on which the matter was taken under advisement.